The Right to Choose Counsel in the Pre-trial Stage of Criminal Proceedings and Consequences of its Violation, by Example of Estonian Supreme Court Decision 3-1-2-2-14

Anneli Soo

Abstract

The right to counsel is one of the most important rights that accused persons have in criminal procedure, as it helps to guarantee that all other rights of accused persons are respected throughout the procedure. According to the European Convention on Human Rights, the accused has a right to either choose counsel or be provided with legal-aid counsel. Exercising the right to choose one’s counsel is the better option of the two, since it gives the accused an opportunity to choose counsel whom he trusts. Therefore, it is absolutely necessary that the authorities not restrict an accused person’s choice in this connection unless there is compelling reason to do so. When the authorities have failed to honour this obligation, violation of Article 6 of the convention has occurred, as the European Court of Human Rights declared on 30 May 2013 in the case Martin v. Estonia. The Court stated that not only was Estonia to pay damages but it also had to take into account that retrial, reopening of the case, or a review of it may be an appropriate way of redressing the violation. Although Martin’s counsel filed a petition for review with the Estonian Supreme Court afterward, the Supreme Court refused to reopen the case, proceeding from what the author of the article considers to be purely formal arguments. In the article, the author offers her opinion about how the Supreme Court should have acted in order to cure the violation of the right to choose counsel in Martin’s case.

Keywords

Right to counsel; right to choose one’s counsel; violation of Article 6 of the European Convention on Human Rights; remedies for violation of the right to choose one’s counsel